The Catholic Judge and Roe v. Wade

Catholic justices aren't morally guilty if they fail to restrain abortion. But no judge can invent or support spurious 'rights.'

There is no "Catholic way" of interpreting the U.S. Constitution. The tools of constitutional interpretation are its text, history, and structure. True, Catholics trained in the natural law tradition will more readily grasp that our constitutional history includes the self-evident truths of creation, equality and unalienable rights referenced in the Declaration of Independence. But these are hardly exclusively Catholic--nor should they be.

The Constitution puts religious belief off-limits when public officials are selected. It states in Article VI: "No religious Test shall ever be required as a Qualification toany Office or public Trust under the United States." For this reason, and given that courts cannot make policy, religious belief is also off-limits in deciding cases. What role, then, should a judge's faith and moral beliefs play in his or her role as an impartial adjudicator?Church teaching treats judges and policymakers differently. Nowhere does John Paul II's pro-life letter Evangelium Vitae, for example, counsel a judge to go beyond the scope of his or her interpretative mandate to advance the gospel of life. But the Church does not consider people elected to make policy--whether in Congress or the White House--to be similarly immune to theinfluence of faith. Repeatedly and wisely, the Church's teaching is directed at "elected officials" or those casting "a legislative vote." Soneither former presidential candidate John Kerry (D-Mass.) nor Sen. Rick Santorum (R-Penn.), for example, should feign surprisewhen the Church calls them to reduce the incidence of abortion or the disproportionate application of the death penalty. In bringing the moral insight of faith to legislative debate, the Church is following in the instruction of St. Thomas Aquinas, who argued "that all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it." Of course, for over 30 years there has been great displeasure over Roe v. Wade for, among other reasons, its dishonoring of the democratic choices of the people. Church leaders are thus well within their rights as citizens topoint out in amicus brief that a proper understanding ofthe law does not support abortion on demand. But until that legalcorrection, a Catholic judge may be part of a judicial system that includesRoe. In ruling on such matters, a judge does not become morally complicitin the underlying act or share in its intent. If the question is: "Do theCatholic justices have a specific Catholic duty on the bench to restrainabortion?" the apt response is "no." As Justice Scalia has explained, "A judge ... bears no moral guilt for the laws society has failed to enact." Catholic judges, like other judges, however, do have a general duty tobe judges and not to invent spurious "rights." As the late Chief JusticeRehnquist wrote for a unanimous court in 1997 rejecting the claim thatassisted suicide was a protected liberty, only those liberties that are"objectively, 'deeply rooted in this Nation's history and tradition,' and'implicit in the concept of ordered liberty,' such that 'neither liberty norjustice would exist if they were sacrificed," should have claim for judicialrecognition -- and then such recognition should be only at a level ofgenerality that exhibits "careful description." By this measure, given Roe's dubious legal origin and expansive scope, abortion-rights advocates should be less concerned with counting the number of Catholics on the bench, and more concerned that perhaps the day is nearing when the Supreme Court will return to the separationof powers and follow the law of the Constitution as written--an obligation binding upon all judges, Catholic or not.